Willis v Repatriation Commission

Case [2012] FCA 399


FEDERAL COURT OF AUSTRALIA

Willis v Repatriation Commission [2012] FCA 399

Citation: Willis v Repatriation Commission [2012] FCA 399
Appeal from: Willis and Repatriation Commission [2011] AATA 67
Parties: PETER ROBERT WILLIS v REPATRIATION COMMISSION
File number: VID 183 of 2011
Judge: BROMBERG J
Date of judgment: 19 April 2012
Catchwords: DEFENCE AND WAR – whether veteran entitled to special rate of pension – s 24(1)(c) and s 24(2) of the Veterans’ Entitlements Act 1986 – whether failure by Tribunal to provide adequate reasons – content of duty to provide adequate reasons discussed – the interpretation of the “alone test” in s 24(1)(c) discussed – failure by Tribunal to adequately expose its reasoning – appeal allowed.
Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2), 44
Migration Act 1958 (Cth) s 430
Veterans’ Entitlements Act 1986 (Cth) ss 24, 24(1)(c), 24(2)
Cases cited: Dornan v Riordan (1990) 24 FCR 564
Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 253 ALR 263
Roncevich v Repatriation Commission (2005) 222 CLR 115
Minister for Immigration and Multicultural Affairs v Yusuf  (2001) 206 CLR 323
ARM Constructions v Deputy Commissioner of Taxation (1986) 10 FCR 197
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996)185 CLR 259
Oak Valley (Maralinga) Inc v Aboriginal & Torres Strait Islander Commission (1999) 98 FCR 1
Repatriation Commission v Hendy (2002) 76 ALD 47
Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465
Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500
TelePacific v Commissioner of Taxation (2005) 218 ALR 85
Narbey v Federal Commissioner of Taxation (2008) 111 ALD 312
Federal Commissioner of Taxation v Cainero (1988) 15 ALD 368
Appellant V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259
Hunter v Transport Accident Commission (2005) 43 MVR 130
Carlisle Homes Pty Ltd v Barrett Property Group Pty Limited [2009] FCAFC 31
Alexander v Australian Community Pharmacy Authority [2010] FCA 189
Moorcroft v Repatriation Commission (1999) 58 ALD 143
Cavell v Repatriation Commission (1988) 9 AAR 534 Repatriation Commission v Alexander (2003) 75 ALD 329
Repatriation Commission v Van Heteren (2003) 75 ALD 703
Flentjar v Repatriation Commission (1997) 48 ALD 1 Repatriation Commission vHendy [2002] FCAFC 424
Repatriation Commission v Smith (1987) 15 FCR 327
Byrne v Repatriation Commission [2001] FCA 1134
Forbes v Repatriation Commission (2000) 101 FCR 50
Repatriation Commission v Butcher [2007] FCAFC 36
Date of hearing: 28 October 2011
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 53
Counsel for the Applicant: Mr C Thomson
Solicitor for the Applicant: Peter J Liefman
Counsel for the Respondent: Ms C Dowsett
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 183 of 2011

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

PETER ROBERT WILLIS
Applicant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

BROMBERG J

DATE OF ORDER:

19 APRIL 2012

WHERE MADE:

MELBOURNE

THE COURT…

Continue reading Willis v Repatriation Commission

Sign in free to access the full text

Details
AGLC
Willis v Repatriation Commission [2012] FCA 399
Case
[2012] FCA 399
Decision Date

CaseChat Overview and Summary

The matter of Willis v Repatriation Commission involved a challenge to a decision by the Administrative Appeals Tribunal (AAT) regarding the entitlement of Mr Willis to a special rate of pension under the Veterans’ Entitlements Act 1986. Mr Willis contended that the AAT failed to provide adequate reasons for its decision, thereby impacting his eligibility for a pension at a special rate. The Federal Court was tasked with determining whether the AAT had properly considered the statutory requirements and if the tribunal had adequately justified its decision.

The central legal issues before the court were whether the AAT had correctly interpreted and applied the statutory provisions in s 24 of the Act, specifically focusing on the “alone test” outlined in s 24(1)(c). This section stipulates that a veteran must be "by reason of incapacity from that war caused injury or war caused disease, or both, alone, prevented from continuing to undertake remunerative work." Additionally, the court had to examine if the AAT's failure to provide sufficient reasoning constituted a procedural error that warranted setting aside the tribunal's decision.

The court found that the AAT had not adequately justified its conclusion that Mr Willis's war-caused conditions were not the sole reason preventing him from continuing remunerative work. The tribunal had considered other factors such as Mr Willis's lack of formal qualifications, inability to use a computer, living in a remote area, and his age, but failed to sufficiently articulate how these factors related to the statutory requirements. The court highlighted that the AAT's reasoning was insufficient in explaining how these additional factors were considered in relation to the statutory “alone test.” Consequently, the court concluded that the AAT had not properly discharged its duty to provide adequate reasons for its decision, leading to the appeal being allowed.

The court ordered that the appeal be allowed, the decision of the AAT be set aside, and the case be remitted to the AAT for reconsideration. Furthermore, the court mandated that the respondent bear the costs of the appeal. The detailed reasoning provided by the court underscores the necessity for tribunals to clearly articulate their reasoning, particularly when statutory interpretation and application are involved.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal of 8 February 2011 be set aside.

3. The case be remitted to the Administrative Appeals Tribunal to be heard and decided again.

4. The respondent pay the applicant’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 24 of the Veterans’ Entitlements Act is headed “Special rate of pension”. The terms of s 24(1) and (2) are as follows:(1) This section applies to a veteran if:(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and(aab) the veteran had not yet turned 65 when the claim or application was made; and(a) either:(i)the degree of incapacity of the veteran from war caused injury or war caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and(b)the veteran is totally and permanently incapacitated, that is to say, the veteran’s incapacity from war caused injury or war caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and(c)the veteran is, by reason of incapacity from that war caused injury or war caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and(d) section 25 does not apply to the veteran.(2) For the purpose of paragraph (1)(c):(a)a veteran who is incapacitated from war caused injury or war caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war caused injury or war caused disease, or both; or(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.FAILURE TO PROVIDE ADEQUATE REASONS FOR DECISION Mr Willis complained by grounds 1 and 2 of his Notice of Appeal that the AAT did not provide any, or any sufficient, explanation for, nor adequately expose its reasoning in determining his claim and in rejecting his application for a pension at the special rate.Duty to Provide Adequate Reasons – Legal Principles

Ratio Decidendi

Legal Principle Established

Finally, in the assessment to be made as to whether the veteran has been prevented from working, it is necessary to identify the work that the veteran had been undertaking. In that respect, and as a number of authorities have stated, it is the type of work which the veteran had been doing, not the veterans last job, which is relevant: Smith at 333; Hendy at [36]; Repatriation Commission v Butcher [2007] FCAFC 36 at [13] (Tamberlin, Nicholson and Tracey JJ). Consideration of the reasons given by the AAT The AAT’s decision identified that the Repatriation Commission had accepted that Mr Willis suffered from the following war-caused medical conditions:·Post-Traumatic Stress Disorder (“PTSD”);·Bilateral Censorineural hearing loss;·Bilateral Tinnitus;·Tinea; and ·Alcohol Dependence, (“Mr Willis’s war-caused conditions”). At [4] of its decision, the AAT set out the issues that it needed to consider as follows:·Is Mr Willis unable to work for more than 8 hours per day?·When and why did Mr Willis stop working?·Do Mr Willis’s accepted war-caused conditions alone prevent him from working? The AAT’s decision is divided into three sections each one headed by one of the three issues identified above. Under the heading “Do Mr Willis’s accepted war-caused conditions alone prevent him from working?”, the AAT set out paragraphs (a) and (b) of s 24(1). It noted that the parties agreed that Mr Willis met the criterion in s 24(1)(a) and accepted that Mr Willis was unable to work for more than 8 hours per week on the basis of his war-caused conditions. The Tribunal then turned to consider s 24(1)(c). It noted that in Flentjar, Branson J set out the issues posed by s 24(1)(c) and then set out the four Flentjar questions as follows:1. What was the relevant “remunerative work that the veteran was undertaking” within the meaning of s 24(1)(c) of the Act?2.Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?3.If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?4.If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity? Dealing with the first Flentjar question, the AAT found that “the remunerative work undertaken by Mr Willis included labourer, process worker, foreman and handyman”. The AAT answered the second Flentjar question in the affirmative. The AAT’s reasons then turned to the third Flentjar question and the matter most pertinent to the grounds of challenge here being considered. The Tribunal stated that there “are also other factors to be taken into account in relation to Mr Willis’s employability apart from his accepted war-caused conditions”. The AAT then set out the comments of Nicholson J at paragraphs [39] and [40] of Forbes, to which I have referred. The AAT then recounted without comment, the evidence of a consultant psychiatrist, an occupational physician and an occupational psychiatrist. Paragraph [38] of the AAT’s decision contains the relevant factual findings made. They are as follows:·Mr Willis stopped working (in his last remunerative employment) because of his neck and shoulder injury and then the closure of the factory in which he worked;·he has an inability to walk long distances and a dislike of hills and stairs; ·he left school after Year 9 and has no formal qualifications; ·he does not know how to use a computer; ·he lives in a relatively remote area and has told the Tribunal that there is little work available;·he is 60 years of age; and ·he has not been in the workforce since ceasing work around 1998.